Internet piracy talks must include us - the consumers

Australians wouldn't need to torrent Game of Thrones if Foxtel hadn't locked it up.

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The real problem is availability of content, not online piracy, and we won't be able to solve that if we shut the Australian public out of the discussion, writes Renai LeMay.

Once again, the Federal Government has decided that something absolutely must be done about the pesky issue of internet piracy of popular TV shows and movies. And once again, it looks like the people most affected by any action on the issue - Australian consumers - are being completely locked out of the conversation.

If you follow the issue of internet piracy in Australia, you will be aware that the ongoing debate on the topic has a rather monotonous and repetitive nature.

The cycle typically starts, no doubt stimulated by the millions of dollars the content industry pours into political coffers, with one elected official or another deciding to "do something" about the record levels of online copyright infringement in this country.

Grandiose speeches are made at content industry conferences claiming that internet piracy is "theft" and that the phenomenon deprives humble artists of their rightful dues, the usual grumbles in response are heard from the digital rights community, and the nation's largest internet service providers and content owners such as film and TV studios are dragged into a room in Canberra where men in black suits try - at first gently, and then through the threat of regulation - to force them into agreeing on a joint voluntary approach to the situation.

Usually the ISPs will come to the party to a certain extent, but will stop short of committing to the holy grail of the content industry: disconnecting the internet accounts of those who are merely suspected of infringing copyright online. The content owners see this as a legitimate measure; everyone else sees it as a tyrannical deprivation of a modern human right to basic telecommunications for what should be the copyright equivalent of a parking ticket. And so the talks inevitably fail. Talking to content owners on the issue, according to ISP iiNet, is like "talking to a brick wall".

The hysterical explosion of comment from Attorney-General George Brandis on the issue over the past week displays all of the usual hallmarks of this cycle. Brandis, who staunchly refused to disclose the Coalition's policy on the issue before the election, is in full flight: Talking tough on the naughty pirates themselves, particularly "teenagers"; threatening the ISP industry with government legislation; and simultaneously talking up the needs of creative types.

Of course, as everyone with any knowledge of the situation will admit, the real problem here isn't piracy or even getting money to starving artists: it's middlemen distributors and the availability of content. Australians wouldn't need to hit up BitTorrent every week in record numbers for the latest episode of Game of Thrones if Foxtel hadn't locked it up so completely. US residents have Netflix, Hulu and many other options for getting quick and cheap access to the content they love. We just have one giant pay TV monopoly which charges premium prices and forces Australians to buy complex subscription packages even if they just want the one show.

But there's a bigger point to be made here: Even if this problem can be solved, the group with the most stake in the issue - the Australian public - has been completely, and sometimes deliberately, left out of the conversation.

The last time the Attorney-General's Department held talks on this issue, in 2011 and 2012, the department explicitly blocked consumer representatives from attending the talks. A number of journalists and digital rights groups fought a furious and protracted Freedom of Information battle with the department just to get the most basic information about the meetings, which were held behind closed doors and involved the largest companies in the ISP and content industries. We still don't really know what was discussed, as the department believes disclosure of the agenda to be contrary to the public interest.

After nine months, the department eventually did invite at least one dedicated consumer representative to the talks. It was the most obvious group, the Australian Communications and Consumer Action Network, which the Government directly funds. But at least one of its representatives was quickly forced to step out, due to a rather obvious conflict of interest which saw them also representing rights holders.

No parliamentary inquiry has been held in recent memory into internet piracy, and the Australian Law Reform Commission's recent examination of the need to reform the Copyright Act in the context of the emerging digital economy was explicitly prohibited from dealing with the issue by the previous Labor Government. Labor also teamed up with the Coalition to block a Senate Order put by the Greens which would have forced the department to, you know, tell the Australian public what the talks were all about. Secrecy in this area is a bipartisan effort.

Now a new Government is seeking to reboot the same old talks; and yet again, it appears they will be held behind closed doors, without the participation of the public. It's not a surprise, for those who deal often with the secretive Attorney-General's Department, but it is disappointing.

There is no doubt that the Australian public does have views about internet piracy, and on both sides of the debate. A poll by Essential Media this week found 38 percent of the population, predominantly Coalition voters, supported government action on the issue, while 42 per cent, predominantly Labor and Greens voters, opposed it.

But we'll never know quite what those views are, especially the nuanced details, unless the Federal Government starts discussing the issue openly and involves consumers and their representatives in these kinds of talks. Massive corporations and government bureaucrats should not be able to decide the future of Australians' access to content without the ordinary punter having their say too. The only way to characterise that situation would be "undemocratic".

Renai LeMay is the publisher of Delimiter, a media outlet focused on technology in the Australian context. View his full profile here.